Excluding Lost Profits and Consequential Damages Under UCC 2-719: Too Much of a Good Thing?

Buyers and sellers often limit the damages recoverable for breach contract in sale of goods cases. Under UCC 2-709(3) such limitations are enforceable, with exceptions for unconscionability. If the exclusionary language is too broadly written, it could be interpreted to preclude direct liability on the contract, not merely consequential damages.

Seller Whittlestone entered a 20 year contract to supply Handi-Craft with products. Buyer Handi-Craft was required to purchase a minimum amount each year. Buyer terminated the contract early. Seller filed suit, claiming the termination was a breach of contract. Buyer asked for damages under the contract, including the value of the lost minimum amount of sales over the remaining term of the contract.

Oops. Buyer’s and seller’s contract provided that in the event of “termination due to a material breach,” “neither party shall be liable to the other for compensation, reimbursement, or damages because of the loss of anticipated sales….” The court enforced this literally against seller, finding that seller could not sue for direct lost sales to the breaching buyer. The court struck the language in the complaint damages for “the lost value of the twenty year contract…, lost profits, consequential damages.”

This result is not within the typical spirit of consequential damage limitations, which are generally intended to eliminate liability for lost sales to third parties, not lost direct contract sales between the parties. On the other hand, because of the long term, the parties may have specifically contemplated this when the agreement was drafted.

Moral of the story: be careful about a limitation on “lost sales” that is so broad you don’t have any direct damages left under the contract.